POSITION PAPER

(submitted by Atty. Beda G. Fajardo

President of the Philippine Bar Association
February 18, 2014)
A constituent assembly is an efficient method of discussing and
amending the Constitution. The PBA supports the framework laid out by
Senior Associate Justice Antonio T. Carpio in the 2006 decision of Lambino
v. Comelec. Under this framework, an "amendment" is generally
understood to be a change in a specific provision that does not alter a basic
principle in the constitution. A "revision" is broader and alters a basic
principle and is expected to cover multiple provisions.
Because a constituent assembly has the power to pass either
change, the PBA recommends that the scope of the changes to be
deliberated be made very clear. If this is done, the public will be
empowered to police whether changes beyond this scope are made. It
would be ideal if specific provisions are identified instead of having a broad
resolution to amend or revise economic provisions in general.
The practical issue in constituting Congress as a constituent
assembly is the vote required from this assembly to pass the amendment
or revision, as Art. XVII, Sec. 1 of the Constitution provides for a vote of
"three-fourths of all its Members." PBA's position is that this must be
interpreted as three-fourths of each house of Congress. The constitution
must be interpreted in the context of its intended structure, which is a
bicameral legislature. To interpret this as a vote of three-fourths of all
congressmen and senators taken together renders this bicameral structure
inutile and produces an absurd result.
The Committee would be wise to add the phrases "as provided by
law" or "unless otherwise provided by law". As detailed in the article Oscar
Franklin Tan, Guarding the Guardians: Addressing the Post-1987
Imbalance of Presidential Power and Judicial Review Philippine Law
Journal (86 Phil. L.J. 523 (2012)), the 1987 Constitution and contains a
large number of policy statements that can be taken by a court and used as
basis to rule in a specific case. The general doctrine set out in the case of
Tanada v. Angara is that outside the Bill of Rights, these policy statements
are not intended to be enforced by themselves in specific cases. Rather,
these are intended to guide the passage and interpretation of legislation
that provide for more specific protection of these rights as enacted by
elected legislators. These cases thus make clear what power the legislators
retain for Congress and what, if any, rights Congress means for courts to
enforce based on the Constitution alone.

regarding the family and upbringing of children and asks the Supreme
Court to use these as basis to nullify the law. The case assailing the
Electric Power Industry Reform Act seeks to nullify the law based on the
Constitution's general statement against monopolies. To allow the
Constitution to be used this way upsets the constitution's balance and
causes Congress to lose authority over large segments of social and
economic
issues.
Finally, amendment of our economic provisions is an excellent
opportunity to reinforce the concept of intergenerational responsibility and
environmental responsibility pronounced in the 1997 case of Oposa v.
Factoran. It would be good to reinforce that economic development must
be in the context of such intergenerational responsibility and both Congress
and the courts must weigh the interests of future Filipinos in deciding
economic matters.
(This was prepared with the participation of Atty. Oscar Franklin Tan)